[Federal Register: November 9, 2006 (Volume 71, Number 217)]
[Proposed Rules]
[Page 65753-65758]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no06-16]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 65753]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210 and 220
RIN 0584-AD58
Fluid Milk Substitutions in the School Nutrition Programs
AGENCY: Food and Nutrition Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule reflects amendments made by section 102 of
the Child Nutrition and WIC Reauthorization Act of 2004 to the Richard
B. Russell National School Lunch Act regarding substitutes for fluid
milk in the National School Lunch Program. This rule would implement a
legislative provision on milk substitutes that follows current
regulations on menu exceptions for students with disabilities and would
add new requirements for substitutions for fluid milk for children with
medical or other special dietary needs.
Specifically, this proposed rule would establish nutritional
standards for nondairy beverage alternatives to fluid milk, as well as
requirements for substitutions for fluid milk for non-disabled students
with medical or special dietary needs. It would allow the parent or
legal guardian of a child with medical or special dietary needs to
request a fluid milk substitute. In addition, it would allow schools to
select acceptable fluid milk substitutes that meet the nutritional
standards established in this proposed rule, and would continue to make
school food authorities responsible for substitution expenses that
exceed the Federal reimbursement.
This rule, as proposed, would ensure consistency among milk
substitutes offered in the school lunch and breakfast programs, and
would make certain that students who consume nondairy beverage
alternates receive important nutrients found in fluid milk.
DATES: To be assured of consideration, written comments must be
postmarked on or before January 8, 2007.
ADDRESSES: The Food and Nutrition Service invites interested persons to
submit comments on this interim rule. Comments may be submitted by any
of the following methods:
E-Mail: Send comments to CNDPROPOSAL@FNS.USDA.GOV. The
subject line must include the words ``Fluid Milk Substitutions''.
Fax: Submit comments by facsimile transmission to: (703)
305-2879, attention Robert Eadie.
Mail: Comments should be addressed to Mr. Robert Eadie,
Chief, Policy and Program Development Branch, Child Nutrition Division,
Food and Nutrition Service, Department of Agriculture, 3101 Park Center
Drive, Room 634, Alexandria, Virginia 22302-1594. All written
submissions will be available for public inspection at this location
Monday through Friday, 8:30 a.m.-5 p.m.
Hand Delivery or Courier: Deliver comments to 3101 Park
Center Drive, Room 634, Alexandria, Virginia 22302-1594, during normal
business hours of 8:30 a.m.-5 p.m.
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
FOR FURTHER INFORMATION CONTACT: William Wagoner or Marisol Benesch,
Policy and Program Development Branch, Child Nutrition Division, Food
and Nutrition Service at (703) 305-2590.
SUPPLEMENTARY INFORMATION:
I. Background
National School Lunch Program (NSLP) regulations under 7 CFR
210.10(g)(1) require schools to make food substitutions for children
whose disabilities restrict their diet, and give schools discretion to
make substitutions for students with medical or other special dietary
needs. The need for substitutions must be supported by a statement
signed by a physician in the case of a student with a disability, or by
a recognized medical authority in the case of a student who is not
disabled. The substitution rules in the NSLP also apply to the School
Breakfast Program (SBP), pursuant to regulations at 7 CFR 220.8(g).
Section 102 of the Child Nutrition and WIC Reauthorization Act of
2004 (Pub. L. 108-265; June 30, 2004) amended section 9(a)(2) of the
Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C.
1758(a)(2), to include the above regulatory provisions and added the
following requirements for substitutions for milk:
Allows schools to make substitutions for students who have
medical or dietary needs, other than a disability, and accept a
statement from a parent or guardian in lieu of the statement from a
recognized medical authority;
Adds the requirement, except in the case of a student with
a disability, that nondairy beverages offered for substitution must be
``nutritionally equivalent to fluid milk'' and meet the nutritional
standards set by the Secretary of Agriculture;
Grants schools discretion to select acceptable substitutes
that meet the nutritional standards established by the Secretary;
Requires schools to inform the State agency if they choose
to offer substitutes for fluid milk other than for students with a
disability; and
Requires school food authorities (SFAs) to pay for
substitution expenses that exceed Federal reimbursements.
The Food and Nutrition Service (FNS) has issued separate guidance
for accommodating children with special dietary needs in the school
meal programs. The publication ``Accommodating Children with Special
Dietary Needs in the School Nutrition Programs'' is available at the
FNS Web site (http://www.fns.usda.gov/cnd/Guidance/special_dietary_needs.pdf
).
This proposed rule also makes a non-substantive change to the
heading of 7 CFR 210.10 and 7 CFR 220.8 by converting each from a
question to a statement. This change is intended to conform the
headings to the same style as all other section headings in 7 CFR Parts
210 and 220. These non-substantive changes will not change the basic
meaning of the headings, nor affect the meaning of any of the
subsections.
II. Fluid Milk Requirement
Schools participating in the school meals programs are required to
offer fluid milk as part of a reimbursable meal pursuant to section
9(a)(2) of the NSLA, 42 U.S.C. 1758(a)(2) and 7 CFR 210.10(m)(1)(ii)
and 7 CFR 220.8(i)(1). This requirement is in place because
[[Page 65754]]
research shows that milk consumption is especially important to bone
health during childhood and adolescence. Section 102 of Public Law 108-
265 expands section 9(a)(2) and continues the current milk requirement,
and gives schools the option to offer an acceptable nondairy substitute
to non-disabled children who cannot drink fluid milk for medical or
other special dietary reasons.
III. Substitutions for Disability Reasons
Current regulations governing the NSLP and SBP require schools to
make substitutions for children who cannot consume the regular lunch,
afterschool snack or breakfast due to their disability, when that need
is certified by a physician and the substitution needed for any food
item (including fluid milk) is specified with a diet order or diet
prescription. The regulations at 7 CFR 210.10(g)(1) already contain
these requirements. This proposed rule retains the requirements as
currently stated, but reorganizes them for clarity to distinguish
between the requirements for substitutions for disabled and non-
disabled students.
IV. Substitutions for Non-Disability Reasons
Over the years, Federal, State, and local program officials have
received requests from parents and caregivers for alternatives to fluid
milk for children who have milk intolerances or allergies that restrict
their diet but do not meet the definition of disability. Under the
current regulations, schools may offer non-disabled students
substitutes for fluid milk when supported by a statement from a
recognized medical authority. This proposed regulation would require
that milk substitutions for non-disabled students meet the nutritional
standards established in this rule and would allow schools the
discretion to offer acceptable substitutes. This proposed rule would
also permit schools to accept a written request from a parent or legal
guardian in lieu of a statement from a medical authority. These and
other statutory provisions are discussed in more detail in the
following sections.
Nutritional Standards for Milk Substitutes
The NSLA now allows schools the option to offer a nondairy beverage
that is nutritionally equivalent to fluid milk for non-disabled
children with medical or special dietary needs. To ensure that children
receive adequate substitutes, section 9(a)(2)(B) of the NSLA, 42 U.S.C.
1758(a)(2)(B), requires the Secretary to establish nutritional
standards for nondairy beverages to assure that they are nutritionally
equivalent to milk. That section also requires that milk substitutes be
fortified with calcium, protein, vitamin A, and vitamin D to levels
found in fluid milk.
The NSLA also authorizes the Secretary to specify other nutrients
in addition to the ones required by the statute. Existing research
indicates that fluid milk is a major source of a number of other
nutrients. According to the Food and Drug Administration (FDA), an
``excellent source'' (as found in 21 CFR 101.54(b)(1)) is a food item
that contributes at least 20 percent of the daily need of a specified
nutrient per serving. One serving (1 cup) of milk fulfills the FDA's
nutrient content claim of ``excellent source'' for calcium, riboflavin
and phosphorus. In addition, data from the Continuing Survey of Food
Intakes by Individuals (see table below) shows that milk is the primary
food source for children for the following vitamins and minerals:
Vitamin A, riboflavin, vitamin B-12, calcium, magnesium, phosphorus,
and potassium. Given the special role of milk in providing these
nutrients to children, the Department is proposing to extend the
requirements for nondairy milk substitutes to also include minimum
nutrient levels for riboflavin, vitamin B-12, magnesium, phosphorus,
potassium.
Summary of Milk Contributions to Total Nutrient Intakes Among U.S.
Children, 2-18 Years of Age, 1994-96, 1998
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Percent of
Nutrient Rank total
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Energy....................................... 1 9.0
Carbohydrate................................. 5 6.0
Protein...................................... 1 16.4
Total fat.................................... 1 10.4
Saturated fat................................ 1 17.8
Polyunsaturated fat.......................... 10 2.2
Monosaturated fat............................ 4 7.8
Cholesterol.................................. 3 13.5
Fiber........................................ ........... < 1
Vitamin C.................................... 7 3.5
Vitamin E.................................... 11 3.7
Vitamin A (RE)............................... 1 20.2
Carotene..................................... 6 2.3
Folate....................................... 4 6.4
Thiamin...................................... 3 8.1
Riboflavin................................... 1 27.2
Niacin....................................... ........... < 1
Vitamin B-6.................................. 2 8.5
Vitamin B-12................................. 1 31.5
Calcium...................................... 1 45.7
Phosphorus................................... 1 27.3
Sodium....................................... 4 5.4
Potassium.................................... 1 22.4
Iron......................................... ........... < 1
Zinc......................................... 3 12.4
Magnesium.................................... 1 18.9
Copper....................................... 12 3.1
Selenium..................................... 3 8.7
Caffeine..................................... ........... < 1
Theobromine.................................. ........... < 1
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Derived from: 1994-96, 1998 Continuing Survey of Food Intakes by
Individuals. Dietary Source Nutrient Database for USDA Survey Food
Codes.
In setting minimum nutritional standards for milk substitutes, we
examined the nutrient levels found in various types of milk using
USDA's Nutrient Database for Dietary Studies 1.0.\1\ Among the
varieties of fluid milk, whole milk typically provides the lowest
levels of several important nutrients; therefore, we used whole milk
(3.25% milkfat, the lowest fat level allowable for whole milk) as a
benchmark for all nutrients except vitamins A and D. The chosen levels
of vitamins A and D were based upon FDA's definition of ``excellent
source'' and the milk fortification levels required by the FDA.
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\1\ USDA Food and Nutrient Database for Dietary Studies 1.0.
2004. Beltsville, MD: Agricultural Research Service, Food Surveys
Research Group.
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Based on the above, this rule proposes that allowable fluid milk
substitutes provide, at a minimum, the nutrients listed on the
following table. The following table also shows the Recommended Daily
Intake (RDI) for each of these nutrients and the percentage of the RDI
provided by a cup of whole milk (values are RDI unless specified as
Daily Reference Value (DRV)).
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Nutrient Per cup RDI Percentage
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Calcium.................................. 276 mg.................... 1000 mg.................. 27.6
[[Page 65755]]
Protein.................................. 8 g....................... 50 g (DRV)............... 16.0
Vitamin A................................ 500 IU.................... 5000 IU.................. 10.0
Vitamin D................................ 100 IU.................... 400 IU................... 25.0
Magnesium................................ 24 mg..................... 400 mg................... 6.00
Phosphorus............................... 222 mg.................... 1000 mg.................. 22.2
Potassium................................ 349 mg.................... 3500 mg (DRV)............ 10.0
Riboflavin............................... 0.44 mg................... 1.7 mg................... 25.9
Vitamin B 12............................. 1.1 mcg................... 6.0 mcg.................. 18.3
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Sources: USDA National Nutrient Database for Standard Reference, Release 17 (2004). FDA Consumer Special Issue:
Focus on Food Labeling, ``Daily Values Encourage Healthy Diet'', May 1993.
Fortification of nondairy milk substitutes used in the school
nutrition programs must follow FDA guidelines, particularly those
outlined in 21 CFR 101.9. In addition, Appendix O of the publication
entitled ``Grade `A' Pasteurized Milk Ordinance'', issued by the FDA's
Center for Food Safety and Applied Nutrition, provides guidance on
upper bounds of vitamin A and vitamin D fortification.
In light of the recommendations of the ``2005 Dietary Guidelines
for Americans'' on fats and added sugars, and current trends in
childhood overweight, the Department considered establishing maximum
levels for nondairy milk substitutes for additional energy-bearing
nutrients available on the Nutrition Facts Panel--either total calories
(energy) or total fat, saturated fat, trans fat and total sugars--to
limit their contribution toward the total calories. We refrained from
doing so for the following reasons.
First, we examined the levels of energy, total fats, saturated
fats, and sugars generally available in regular and chocolate-flavored
fluid whole milk. Chocolate-flavored whole milk typically has the
highest levels of calories and total sugar among all fluid milk
varieties. When we compared the nutrient levels in chocolate-flavored
whole milk and in a typical chocolate-flavored soy-based beverage
alternative (see following table), we concluded that the commercial
marketplace already provides a level of energy, total fat, saturated
fat, and total sugars in milk substitutes that is below the levels
contained in milks currently allowable in the NSLP and SBP, and further
special regulatory restriction for milk substitutes does not seem
warranted.
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Milk type (1 cup) Energy (kcal) Total fat (g) Saturated fat (g) Sugars (total)
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Milk, chocolate, commercial, 208 kcals per cup. 8.48 g per cup.... 5.260 g per cup... 23.85 g per cup.
whole.
Milk, soy, ready-to-drink, not- 118 kcals per cup. 4.58 g per cup.... 0.514 g per cup... 10.8 g per cup.
baby's, chocolate.
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Source: USDA Food and Nutrient Database for Dietary Studies, 2.0. 2006. Beltsville, MD: Agricultural Research
Service, Food Surveys Research Group.
Second, FNS believes that it is important to be consistent in our
definition of allowable milk substitutes across our Federal nutrition
programs. Currently, the Supplemental Program for Women Infants and
Children (WIC) has proposed a definition for allowable soy-based
beverages (71 FR 44801) that reflects the minimum nutrient and energy
levels proposed by this rule. Establishing maximum nutrition standards
for energy or total fat, saturated fat, trans fat and sugar levels for
milk substitutes in the school meals program would, therefore, generate
inconsistency in our nutrition programs.
Third, in regard to sugar levels and total diet quality, the
``Report of the Dietary Guidelines Advisory Committee on the Dietary
Guidelines for Americans, 2005,'' notes that sugars can improve the
palatability of foods and beverages that otherwise might not be
consumed. Additionally, not all foods that contain added sugars are
poor sources of nutrients. The Report also notes that, on average, the
quality of children's and adolescents' total diet is positively
affected by the consumption of sweetened dairy foods and beverages. The
Department recognizes that the ``2005 Dietary Guidelines for
Americans'' recommends choosing foods and beverages with little added
sugars or caloric sweeteners, and is interested in encouraging
reasonably low levels of added sugars in milk substitutes. However, we
do not believe that it is necessary to establish a regulatory maximum
level for sugars in milk substitutes when one is not established for
fluid milk.
Fourth, the Department also considered the potential impact of
limiting total and saturated fats in milk substitutes. While fats are a
significant contributor of calories, the Department recognizes that
they are part of a healthful diet and facilitate the absorption of
important nutrients found in fluid milk such as vitamins A and D.
Current commercially available milk substitutes do not exceed the fat
or saturated fat levels of flavored whole milk, as seen in the table
above.
For the reasons stated above, the Department decided not to propose
maximum standards for calories or total fat, saturated fat, trans fat
and sugars for milk substitutes. However, since the intent is to
provide products that are reasonable substitutes for fluid milk, the
Department will recommend that when made available, schools use the
profile of unflavored milk with respect to calories, fats, and sugars
as the guide for evaluating fluid nondairy milk substitutes. We further
recommend that schools do not offer fluid nondairy milk substitutes
that exceed maximum levels for these nutrients based on the nutrient
profile of chocolate-flavored whole milk. Guidance and technical
assistance from the Department would emphasize the importance of
offering nondairy milk substitutes that meet the proposed minimum
requirements but do not exceed the levels of calories, total fat,
saturated fat, and sugars commonly found in the milks offered locally
in school meals. Milk substitutes offered for non-medical reasons will
be
[[Page 65756]]
included in the nutrient analyses required under existing regulations.
Selection of Nondairy Beverages by Schools
While the NSLA requires the Secretary to identify the nutritional
requirements for an equivalent beverage, a school wishing to offer
fluid milk substitutes for non-disabled children would be responsible
for choosing nondairy beverages that would meet the nutritional
standards identified in this proposed rule. This would require that a
school review documentation of the nutrients in nondairy beverages to
determine if the beverages comply with the regulatory nutritional
standards for milk substitutes. This proposed rule would allow a school
to offer the nondairy beverage(s) that it has identified and selected
as acceptable fluid milk substitute(s) based on the nutritional
standards established by the Secretary. To the extent practicable,
unless otherwise specified by a physician, the alternate nondairy
beverages for disabled students should meet the same nutritional
standards that apply to milk substitutes for non-disabled students.
Written Statement From Student's Parent or Legal Guardian
We intend to allow schools to fulfill the requests for fluid milk
substitutes for children with medical and special dietary needs without
creating additional paperwork or administrative burdens for parents or
schools. Therefore, this proposed rule would allow a student's parent
or legal guardian to submit a written request for a nondairy substitute
by attaching it to the application form for free and reduced price
meals or by submitting the request separately in writing at any time,
provided that it identifies the student's medical or other special
dietary needs. The request for substitutions would remain in effect
until the student's parent or legal guardian revokes such request in
writing, or until the school discontinues this option.
State Agency Notification
Section 9(a)(2)(B)(ii) of the NSLA requires that schools inform the
State agency (SA) if they choose to offer substitutes for fluid milk
other than for children with a disability. Recognizing the State/local
administrative structure, this rule would require each SFA to report to
the State agency on behalf of its schools. According to this proposed
rule, the SA would be able to specify how SFAs must notify it of this
decision. FNS would expect the SA to have information on file regarding
schools that offer this option for review upon request.
Documentation for Substitutions
Section 9(a)(2)(B)(ii) of the NSLA also requires that a request for
milk substitution be in writing and identify the student's medical or
special dietary need. This proposed rule would require schools to
retain documentation such as the written statement from a medical
authority or the student's parent or guardian, and product information
certifying the nutritional content of the milk substitute.
Expenses Related to Milk Substitutions
In accordance with section 9(a)(2)(B)(iii) of the NSLA, schools
would cover expenses incurred in providing allowable fluid milk
substitutions that are in excess of expenses covered by program
reimbursements. Because milk substitutions are granted on a case by
case basis and a school selects the acceptable nondairy beverage(s), we
anticipate that in most cases the substitution could be accommodated
without undue financial hardship. These substitutions would be
allowable costs and chargeable to the nonprofit school food service
account.
V. Procedural Matters
Executive Order 12866
This proposed rule has been determined to be significant and was
reviewed by the Office Management and Budget in conformance with
Executive Order 12866.
Regulatory Impact Analysis
Need for Action
This action is needed to implement the provisions of Public Law
108-265 regarding the substitution of fluid milk in the NSLP and SBP.
In accordance with the NSLA, this proposed rule would establish
nutritional standards for milk substitutes, set minimum requirements
for the substitution of milk for students with medical or special
dietary needs, allow schools to identify acceptable substitutes that
meet the nutritional standards established by the Secretary, and make
school food authorities responsible for substitution expenses that
exceed Federal reimbursement.
Cost-Benefit Assessment
Previous analyses by FNS and the Congressional Budget Office of the
provision being implemented in this rule estimated a cost of less than
$500,000 annually. Little cost is anticipated because it is expected
that few students will request a non-dairy alternative to fluid milk;
schools are not required to provide a substitution; and the Federal
government will not reimburse any additional cost for non-dairy
alternatives. This rule is not expected to significantly increase
administrative burdens at the national, state, or local level. The
benefits of this rule include nutritional consistency among milk
substitutes offered in the school meal programs and reduced barriers
for students who cannot consume fluid milk.
Regulatory Flexibility Act
This proposed rule has been reviewed with regard to the
requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-
612). Nancy Montanez Johner, Under Secretary of Food, Nutrition, and
Consumer Services has certified that this proposed rule will not have a
significant economic impact on a substantial number of small entities
participating in the NSLP and SBP. The requirement to provide
substitutes for students with disabilities is not new, and the
requirement concerning milk substitutes for non-disability reasons is
only triggered if a school chooses to offer milk substitutes for non-
disabled students with medical or special dietary needs.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, the
Department generally must prepare a written statement, including a
cost/benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, or tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. When such a statement is needed for a
rule, section 205 of the UMRA generally requires the Department to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, more cost-effective or least burdensome
alternative that achieves the objectives of the rule. This proposed
rule contains no Federal mandates (under the regulatory provisions of
Title II of the UMRA) that impose costs on State, local, or tribal
governments or to the private sector of $100 million or more in any one
year. This proposed rule is, therefore, not subject to the requirements
of sections 202 and 205 of the UMRA.
[[Page 65757]]
Executive Order 12372
The NSLP is listed in the Catalog of Federal Domestic Assistance
under No. 10.555 and the SBP is listed under No. 10.553. For the
reasons set forth in the final rule in 7 CFR part 3015, Subpart V and
related Notice (48 FR 29115, June 24, 1983), these Programs are
included in the scope of Executive Order 12372, which requires
intergovernmental consultation with State and local officials.
Since the NSLP and SBP are State-administered, federally funded
programs, our national headquarters staff and regional offices have
formal and informal discussions with State and local officials on an
ongoing basis regarding program implementation and policy issues. This
arrangement allows State and local agencies to provide feedback that
forms the basis for any discretionary decisions made in this and other
rules.
Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement, for inclusion in the preamble to the
regulations, describing the agency's considerations in terms of the
three categories called for under section (6)(b)(2)(B) of Executive
Order 13132. FNS has considered the impact of this rule on State and
local governments and has determined that this rule does not have
Federalism implications. This rule would not impose substantial or
direct compliance costs on State and local governments. Therefore,
under Section 6(b) of the Executive Order, a federalism summary impact
statement is not required.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This proposed rule is intended to have preemptive
effect with respect to any State or local laws, regulations or policies
which conflict with its provisions or which would otherwise impede its
full implementation. This proposed rule is not intended to have
retroactive effect. Prior to any judicial challenge to the provisions
of this rule or the application of its provisions, all applicable
administrative procedures must be exhausted.
Civil Rights Impact Analysis
FNS has reviewed this proposed rule in accordance with the
Department Regulation 4300-4, ``Civil Rights Impact Analysis,'' to
identify and address any major civil rights impacts the rule might have
on children on the basis of age, race, color, national origin, sex or
disability. After careful review of the rule's intent and provisions,
FNS has determined that it would not have a deleterious effect on the
participation of protected individuals in the NSLP and SBP. The rule's
sole effect is to facilitate nutritionally adequate nondairy beverages
for participants that have a disability or medical condition that
precludes their consumption of fluid milk.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR
1320) requires that the Office of Management and Budget (OMB) approve
all collections of information by a Federal agency before they can be
implemented. Respondents are not required to respond to any collection
of information unless it displays a current valid OMB control number.
The recordkeeping and reporting burden contained in this rule is
approved under OMB No. 0584-0006. This proposed rule does not contain
any new information collection requirements subject to approval by OMB
under the Paperwork Reduction Act of 1995.
E-Government Act Compliance
The Food and Nutrition Service is committed to complying with the
E-Government Act, to promote the use of the Internet and other
information technologies to provide increased opportunities for citizen
access to Government information and services, and for other purposes.
List of Subjects
7 CFR Part 210
Grant programs--education, Grant programs--health, Infants and
children, Nutrition, Penalties, Reporting and recordkeeping
requirements, School breakfast and lunch programs, Surplus agricultural
commodities.
7 CFR Part 220
Grant programs--education, Grant programs--health, Infants and
children, Nutrition, Reporting and recordkeeping requirements, School
breakfast and lunch programs.
Accordingly, 7 CFR parts 210 and 220 are proposed to be amended as
follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
1. The authority citation for 7 CFR part 210 continues to read as
follows:
Authority: 42 U.S.C. 1751-1760, 1779.
2. In Sec. 210.10:
a. Revise the section heading;
b. Revise paragraph (g)(1);
c. Redesignate paragraphs (g)(2) and (g)(3) as paragraphs (g)(3)
and (g)(4), respectively, and add a new paragraph (g)(2); and
d. Redesignate paragraph (m)(3) as paragraph (m)(4) and add a new
paragraph (m)(3).
The revisions and additions read as follows:
Sec. 210.10 Nutrition standards and menu planning approaches for
lunches and requirements for afterschool snacks.
* * * * *
(g) * * *
(1) Exceptions for disability reasons. Schools must make
substitutions in lunches and afterschool snacks for students who are
considered to have a disability under 7 CFR part 15b and whose
disability restricts their diet. Substitutions must be made on a case
by case basis only when supported by a written statement of the need
for substitutions that includes the student's disability, an
explanation of why the disability restricts the student's diet, the
major life activity affected by the disability, the food(s) to be
omitted from the student's diet, and the recommended alternative foods.
Such statement must be signed by a licensed physician.
(2) Exceptions for non-disability reasons. Schools may make
substitutions for students without disabilities who cannot consume the
regular lunch or afterschool snack because of medical or other special
dietary needs. Substitutions must be made on a case by case basis only
when supported by a written statement of the need for substitutions
that identifies the medical or special dietary need that restricts the
student's diet, the foods to be omitted from the student's diet and,
except for fluid milk, recommended alternative foods. Such statement
must be signed by a recognized medical authority.
(i) Milk substitutions for non-disability reasons. Schools may make
substitutions for fluid milk for non-disabled students who cannot
consume fluid milk due to medical or special dietary needs. A school
that selects this option may offer the nondairy beverage(s) of its
choice, provided the beverage(s) meet the nutritional standards
established under paragraph (m) of this section. Expenses incurred in
providing substitutions for fluid milk that exceed program
reimbursements must be paid by the school food authority.
(ii) Requisites for milk substitutions.
[[Page 65758]]
(A) A school food authority must inform the State agency if any of
its schools choose to offer fluid milk substitutes other than for
students with disabilities; and
(B) A medical authority or the student's parent or legal guardian
must submit a written request for a fluid milk substitute identifying
the medical or other special dietary need that restricts the student's
diet.
(iii) Substitution approval. The approval for fluid milk
substitution shall remain in effect until the medical authority or the
student's parent or legal guardian revokes such request in writing, or
until such time as the school changes its substitution policy for non-
disabled students.
* * * * *
(m) * * *
(3) Milk substitutes. If a school chooses to offer one or more
substitutes for fluid milk for non-disabled students with medical or
special dietary needs, all substitute beverages offered must be
fortified to meet 276 milligrams calcium per cup, 8 grams protein per
cup, 500 International Units vitamin A per cup, 100 International Units
vitamin D per cup, 24 milligrams magnesium per cup, 222 milligrams
phosphorus per cup, 349 milligrams potassium per cup, 0.44 milligrams
riboflavin per cup, and 1.1 micrograms vitamin B12 per cup, in
accordance with fortification guidelines issued by the Food and Drug
Administration. A school need only offer the nondairy beverage(s) that
it has identified as allowable milk substitutes according to this
paragraph (m)(3).
* * * * *
PART 220--SCHOOL BREAKFAST PROGRAM
1. The authority citation for 7 CFR part 220 continues to read as
follows:
Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.
2. In Sec. 220.8:
a. Revise the section heading;
b. Revise paragraph (d)(1);
c. Redesignate paragraphs (d)(2) and (d)(3) as paragraphs (d)(3)
and (d)(4), respectively, and add a new paragraph (d)(2); and
d. Add a new paragraph (i)(3).
The revisions and additions read as follows:
Sec. 220.8 Nutrition standards and menu planning approaches for
breakfasts.
* * * * *
(d) * * *
(1) Exceptions for disability reasons. Schools must make
substitutions in breakfasts for students who are considered to have a
disability under 7 CFR part 15b of this title and whose disability
restricts their diet. Substitutions must be made on a case by case
basis only when supported by a written statement of the need for
substitutions that includes the student's disability, an explanation of
why the disability restricts the student's diet, the major life
activity affected by the disability, the food(s) to be omitted from the
student's diet, and the recommended alternative foods. Such statement
must be signed by a licensed physician.
(2) Exceptions for non-disability reasons. Schools may make
substitutions for students without disabilities who cannot consume the
breakfast because of medical or other special dietary needs.
Substitutions must be made on a case by case basis only when supported
by a written statement of the need for substitutions that identifies
the medical or special dietary need that restricts the student's diet,
the foods to be omitted from the student's diet and, except for milk,
recommended alternative foods. Such statement must be signed by a
recognized medical authority.
(i) Milk substitutions for non-disability reasons. Schools may make
substitutions for fluid milk for non-disabled students who cannot
consume fluid milk due to medical or special dietary needs. A school
that selects this option may offer the nondairy beverage(s) of its
choice, provided the beverage(s) meet the nutritional standards
established in Part 210 of this chapter. Expenses incurred in providing
substitutions for fluid milk that exceed program reimbursements must be
paid by the school food authority.
(ii) Requisites for milk substitutions.
(A) A school food authority must inform the State agency if any of
its schools choose to offer fluid milk substitutes other than for
students with disabilities; and
(B) A medical authority or the student's parent or legal guardian
must submit a written request for a fluid milk substitute identifying
the medical or other special dietary need that restricts the student's
diet.
(iii) Substitution approval. The approval for fluid milk
substitution shall remain in effect until the medical authority or the
student's parent or legal guardian revokes such request in writing, or
until such time as the school changes its substitution policy for non-
disabled students.
* * * * *
(i) * * *
(3) Milk substitutes. If a school chooses to offer one or more
substitutes for fluid milk for non-disabled students with medical or
special dietary needs, all substitute beverages offered must be
fortified to meet 276 milligrams calcium per cup, 8 grams protein per
cup, 500 International Units vitamin A per cup, 100 International Units
vitamin D per cup, 24 milligrams magnesium per cup, 222 milligrams
phosphorus per cup, 349 milligrams potassium per cup, 0.44 milligrams
riboflavin per cup, and 1.1 micrograms vitamin B12 per cup, in
accordance with fortification guidelines issued by the Food and Drug
Administration. A school need only offer the nondairy beverages that it
has selected as allowable milk substitutes according to this paragraph
(i)(3).
* * * * *
Dated: November 1, 2006.
Nancy Montanez Johner,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 06-9136 Filed 11-8-06; 8:45 am]
BILLING CODE 3410-30-P